The story behind this new cause of action
This legislation expands the Bert J. Harris Jr., Property Rights Protection Act (which we have recently discussed here and here) and codifies the 2013 United States Supreme Court’s Koontz decision. Following the Koontz case, a local government’s power to condition the approval of proposed development by demanding property or monetary exactions has been significantly curtailed.
Effective October 1, 2015, Florida has crafted a new cause of action under Section 70.45, Florida Statutes, which will provide relief for property owners who have been subjected to such an unlawful exaction.
How it works
Under Florida’s new developer-friendly statute, property owners must provide an advance notice of intent to file suit, along with an estimate of damages. Upon receipt of the notice, the local government must then explain why the exaction is proportionate or offer to remove or reduce the exaction.
Thereafter, if the case proceeds to trial, the statute places a burden on the local government to prove that the exaction has an essential nexus to a legitimate public purpose and is roughly proportionate.
The loser may have to pay attorney’s fees and costs
Another important provision to highlight is one which allows a court to award attorney’s fees and costs to the prevailing party. Thus, if a court determines that the imposed exaction lacked an essential nexus, the property owner’s attorney fees and costs may be recovered from the local government.
If you are a property owner in Florida and believe that you may benefit from this provision of the Florida Statutes, please do not hesitate to call Henderson Franklin’s Land Use and Environmental Law Department at 239-344-1100.